Contents

Protection Prior to and During Trial

Bail Conditions

What is proposed - summary

11. A new standard condition of bail that prohibits an accused
when they are charged with domestic abuse offences from obtaining
precognitions or statements from a complainer except through a
solicitor.

What is proposed - further detail

12. The standard set of bail conditions, which are applied in
all cases where an accused individual is released on bail, are
listed at section 24(5) of the Criminal Procedure (Scotland) Act
1995 ("the 1995 Act").

13. Amongst the standard conditions are requirements that the
accused attends court as required, does not commit any further
offences, does not interfere with witnesses or behave in a way that
would cause witnesses alarm or distress, and that the accused must
make himself or herself available for the purpose of enquiries or
reports which would assist the court in dealing with the case.

14. Along with these standard conditions that apply whatever
offence is alleged to have been committed, a particular standard
condition applies (section 24(5)(e) of the 1995 Act) where the
offence in question is one to which section 288C of the 1995 Act
applies. Section 288C is a list of certain sexual offences.

15. The additional standard condition has the effect of
prohibiting persons accused of any of the offences listed in
section 288C from seeking to obtain precognitions or statements
concerning the subject matter of the offence from the complainer,
other than by way of a solicitor.

16. The reason for this existing standard condition operating in
relation to certain sexual offences is to prevent an accused
seeking to use the processes of the justice system to re-victimise
the complainer. An accused may, for example, seek to intimidate the
complainer by directly taking statements from them.

17. We consider that domestic abuse has a number of
characteristics in common with sexual abuse. These include in
particular the exercise of control in an especially intrusive and
intimate way by the perpetrator over the victim. Indeed, the
attempted exercise of such control is likely to be a more essential
feature of domestic abuse offences than of sexual offences in
general, given that the former must necessarily involve an intimate
relationship between the accused and the complainer while the
latter do not.

18. With this in mind, we consider the protection of an
additional bail condition is appropriate in domestic abuse
cases.

19. In terms of what domestic abuse cases this bail condition
should apply to, we consider it should apply for anyone accused of
the new domestic abuse offence.

20. In addition, we consider that the harm which the additional
bail condition is designed to avert can take place in a wider range
of cases than simply in relation to the new domestic abuse offence.
For example, we consider such harm can take place where an offence
is general in nature (
e.g. threatening and abusive
behaviour) but was committed in the context of domestic abuse.

21. The Abusive Behaviour and Sexual Harm (Scotland) Act 2016
includes provision (section 1) that creates a new statutory
aggravation where an offence consists of abuse of a partner or
ex-partner. This domestic abuse aggravator will mean that offences
associated with domestic abuse, but not fitting the specific terms
of the domestic abuse offence (
e.g. where it consists of a
single incident and there is no course of conduct) will officially
be labelled as offences associated with domestic abuse.

22. We consider the new standard bail condition should also
apply to where the domestic abuse aggravation has been added to an
offence.

Benefit of what is proposed

23. The introduction of a new standard bail condition will help
reduce the likelihood of accused persons using the processes of the
justice system to exert undue control and influence over the
complainer, helping minimise the trauma for the complainer while
still ensuring the proper administration of justice is
achieved.